Prof. James Livingston (white himself) said he "hate[s] white people" -- but Rutgers' reasoning would equally punish professors who express a wide range of views that offend people with a particular religion, sexual orientation, gender identity, and the like.

James Livingston, a professor at Rutgers (the state university of New Jersey), put up a Facebook comment:

OK, officially, I now hate white people. I am a white people, for God's sake, but can we keep them--us--us out of my neighborhood? I just went to Harlem Shake on 124 and Lenox for a Classic burger to go, that would my dinner, and the place is overrun with little Caucasian assholes who know their parents will approve of anything they do. Slide around the floor, you little shithead, sing loudly, you unlikely moron. Do what you want, nobody here is gonna restrict your right to be white.

After Facebook removed the post for violating its Community Standards, he followed up with:

I don't get the FB threat thing against me because as far as I can tell, my page is intact, including my earnest, angry, and ridiculous resignation from the white race. As if I could! Calling Noel Ignatiev. Who am I kidding? The FB algortihm conjoins the words "race" and "hate" and designates the origin, which would be me, as a problem. OK, God knows I am. But not in this regard. I just don't want little Caucasians overrunning my life, as they did last night. Please God, remand them to the suburbs, where they and their parents can colonize every restaurant, all the while pretending that the idiotic indulgence of their privilege signifies cosmpololitan--you know, as in sophisticated "European"--commitments.

Rutgers received many complaints about this, and earlier this month affirmed the decision (by the Director of the Office of Employment Equity, Lisa Grosskreutz) that this speech violated the University's Policy Prohibiting Discrimination and Harassment, and was unprotected by the First Amendment. Livingston now faces possible disciplinary action.

As our readers may gather, I find nothing redeeming in Livingston's racist, vulgar rant, or in his fashionable but ridiculous attempt (which Rutgers rightly rejected) to redefine "racism" to exclude contempt and hatred for whites, or at least for whites that don't behave the way he thinks whites should behave. Many people I know and admire take the view -- which I don't share, but which many decent people do adopt -- that race-based affirmative action is a permissible, non-racist form of "benign" race preference. But there's nothing remotely "benign" about Livingston's racial hostility.

But Rutgers' justification for punishing Livingston's speech would of course not be at all limited to such racist diatribes. Rather, the decision rests on the theory that:

"Rutgers has a core commitment to diversity, promising 'everyone joining us as a student, professor, or member of staff [that] [w]e at Rutgers will accept you for who you are. That promise of inclusiveness is the foundation of our strength as an academic institution. We believe that bringing diverse groups together into an inclusive community empowers individuals and gives rise to fresh, innovative ideas.'"

"It is reasonable to predict that the university's core function of educating a diverse student body may be disrupted by Professor Livingston's public statements."

Public reports of Livingston's speech "have inflicted reputational damage on the university" and on Livingston's department.

"Given Professor Livingston's insistence on making disparaging racial comments, a reasonable student may have concerns that he or she would be stigmatized in his classes because of his or her race."

Think how much speech can be said by the university to potentially "disrupt[]" the university's "educating a diverse student body," or "inflict[] reputational damage," or make some students feel "stigmatized"; just to offer a few examples,

Speech that sharply criticizes particular denominations of Islam -- or Scientology or Catholicism.

Speech that argues that homosexuality is immoral or against God's plan.

Speech that argues that transgender identity is a form of mental illness that should be treated through means other than accommodating it.

Speech that argues that military service is complicity in murder.

Speech that sharply condemns Israelis or Palestinians.

Speech that argues that women tend to be biologically worse than men at various tasks (or vice versa).

Speech that argues that particular genetic traits lead to violence or low intelligence or what have you.

Likely speech that sharply condemns liberal Democrats or conservative Republicans or Socialists or Libertarians; because Rutgers is a public university, and public universities are generally barred by the First Amendment from discriminating based on political belief, the "any other category protected by law" likely includes political belief as well as religious belief; see, e.g., this Rutgers Sociology Department statement.

Nor would this be limited to speech that overtly expresses hatred. After all, people can feel "stigmatized" for messages that characterize them as foolish (e.g., "Scientologists are either dupes or frauds") or immoral (e.g., "Conservative Islam/Judaism/Christianity is sexist") or mentally ill (as with some arguments about transgender identity) or inferior in certain ways (as with some arguments about alleged biological sex or race differences), and not just those that start with "I hate ...."

The report argues that government employee speech can be punished, despite the First Amendment, when it seems likely to cause sufficient disruption. But, first, even if the First Amendment allows university professors to be disciplined (or even fired) on these grounds, that doesn't mean it's a good idea for universities to adopt such a rule. Perhaps a professor's sharp criticism of certain religious ideologies, for instance, might alienate some students, or might cause loss of donations. But supressing speech on that basis would itself sharply disrupt the universities as places where people have to be free to discuss controversial, even offensive, ideas -- and, as I said, the universities' rationale would apply to serious discussion of ideas and not just insults such as Livingston's.

Second, federal courts have recognized that the First Amendment protects even racially offensive speech by university professors, precisely because universities are supposed to be places where controversial views are allowed. Indeed, in Levin v. Harleston (2d Cir. 1992), a federal appeals court upheld a professor's First Amendment rights to express "denigrating comments concerning the intelligence and social characteristics of blacks" (there, in a book review, a letter to an academic journal, and a letter to the New York Times). What's more, the court held that even the modest reaction by the university there -- "creat[ing] an "alternative" section of [the course that Prof. Levin taught] for those of Levin's students who might want to transfer out of his class" -- was unconstitutional. Again, Levin's speech was more substantive than Livingston's, and not vulgar; but it certainly expressed views that many blacks would understandably find offensive. Yet it was still found to be constitutionally protected. See also Rodriguez v. Maricopa County Community College Dist. (9th Cir. 2010) (reaffirming that "[t]he desire to maintain a sedate academic environment ... [does not] justify limitations on a teacher's freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms," even in a case involving racist speech by a faculty member, such as that "[t]he only immigration reform imperative is preservation of White majority").

The Rutgers decision cited a different appellate opinion, Jeffries v. Harleston (2d Cir. 1995), but that case involved the decision whether an administrator -- a department chair -- could be removed from his administrative position because of his anti-Semitic speech, while still keeping his faculty position without any disciplinary repercussions. The court said yes, precisely because this only had to do with the administrative role:

Finally, we note that an amicus curiae argues that we should not apply Waters at all because Jeffries, as a faculty member in a public university, deserves greater protection from state interference with his speech than did the nurse in Waters who complained about the obstetrics division of the hospital. We recognize that academic freedom is an important First Amendment concern. See, e.g.,Keyishian v. Board of Regents (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."). Jeffries' academic freedom, however, has not been infringed here. As we held in the earlier Jeffries, and as Jeffries himself has argued, the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom.

And this makes sense: Administrators are appointed to their jobs not to themselves advance knowledge through their own research and public commentary, but rather to make the institution run more smoothly. If they make the institution run less smoothy, they can be moved back out of the administrative position for a variety of reasons -- including that their administrative phiolosophy is inconsistent with that of their superiors, that their colleagues just don't like them and don't want to deal with them, and that their public statements (whether having to do with race, religion, politics, educational philosophy, or anything else) alienate prospective faculty members, donors, students, and the like. Yet it doesn't follow that faculty members should be fired or demoted because of such disapproval.

Our University policy on speech is clear. All members of our community enjoy the rights of free expression guaranteed by the First Amendment. Faculty members, as private citizens, enjoy the same freedoms of speech and expression as any private citizen and shall be free from institutional discipline in the exercise of these rights. In addition, they also enjoy academic freedom of expression when functioning in their roles as faculty members. In all cases, however, the conduct of a faculty member must be in accordance with standards dictated by law.

This means that the university indeed has renounced any possible right to suppress faculty speech (at least outside-class speech, said in their capacity "as private citizens") on the theory that its content runs against the university's mission. Just as the "freedom[] of speech" of "any private citizen" allows him to post items saying that he hates whites (or disapproves of conservative Islam, or thinks homosexuality is immoral), so a "[f]aculty member[]" has "the same freedom[]" "and shall be free from institutional discipline in the exercise of [this] right[]." That, the President said, was "clear."

Rutgers' decision in the Livingston case directly contradicts this clear policy. After quoting the "same freedom[] of speech" passage, the decision argues,

The university does, however, demand that the conduct of a faculty member "be in accordance with standards dictated by law." Moreover, the First Amendment generally affords a public employer substantial latitude to discipline employees for speech, including speech via social media platforms. Indeed, constitutional protection only applies to statements that satisfy a three-prong test, discussed below [under which the employee's interest in free expression must outweigh the government's interest in efficient and effective provision of services].

But this is saying that faculty members do not enjoy the same freedoms of speech as any private citizen, and are not free from institutional discipline in the exercise of these rights -- instead, faculty members are to be judged under the special First Amendment rule that gives the government more power over its employees than over private citizens. That is not consistent with the President's statement. (Properly read, the President's reference to "standards dictated by law" must refer to standards set forth equally for all people, private citizens as well as faculty members, such as bans on speech that constitutes a true threat of violence, or on speech that knowingly or recklessly libels people.)

[* * *]

It's often tempting in such cases to focus just on the particular speech involved in that case. But decisions, whether by courts or by university administrators, don't just resolve a particular case -- they also endorse principles that, in a system built on precedent and analogy, will be used in future cases. And, even more importantly, such decisions prevent cases from happening, by sending people a message that they had best avoid certain kinds of behavior.

Here, we have a tenured faculty member being threatened with punishment; the message will be heard loud and clear by other faculty members, but especially by juniors who aren't yet tenured. It will be heard by postdocs and graduate students who are even lower in the university hierarchy. It will also be heard by students in their capacity as students; formally, there might be more protection for students against administrative discipline than for employees, including faculty, but practically how likely is that?

And what they'll hear is not just "don't express overt hatred" or "don't call people shitheads because of their race"; rather, they'll grasp that the logic extends to any speech that the university sees as potentially "disrupt[ive]" or "stigmatiz[ing]" because it interferes with the university's "core commitment to diversity." A dangerous message, which Rutgers is quite deliberately sending.

Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA School of Law and co-founder of the Volokh Conspiracy blog, now hosted at Reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Come now, the system, especially the honorable system that regulates life on college campuses, has every right to discipline this individual for his inappropriate "speech." His words, by virtue of their impropriety are no more protected by the so-called "First Amendment" than a failed academic parody, or a parody that nobody likes, or that isn't clear and humorous enough. See the documentation of our nation's leading criminal "satire" case at:

Looking at the comments above, the thirst seems to be for liberals to be uniformly cartoonish. And though I agree there are many hilarious ones, anecdotes are not enough, it seems. Only supposition and over-generalization will serve.

Liberals love racial hatred. Just had Steven a Smith on ESPN say tiger woods wasn't black because he didn't trash trump today. Or them calling Kanye a house N because he doesn't trash trump. Liberals are hateful bigots who believe they get to choose the primary characteristics of race.

Or he's tired of being identified as of the same group as a bunch of nitwits he despises. I can sympathize with that somewhat. I technically belong to the Baby Boom generation, and I loath much of what they have stood for.

As a general rule, I only say online what I'd shout from the street corner. It's just that my life is too busy for standing around with a sign...

But I think you're right: Rutgers is deliberately chilling free expression of speech by its employees, and likely its students as well. The message here is, "We didn't really mean that stuff about freedom of speech."

You may be right, but I'm not so upset about that. In the corporate world, we're all expected to represent our employer, even if by just staying out of trouble and not saying things that would reflect badly on our employers. Somehow colleges are exempt from that. Maybe they shouldn't be.

Much of what nutty professors say calls into question their impartiality with respect to particular groups of students.

Rutgers showed an unexpected evenhandedness - if only an evenhandedness in retardedness - in punishing a prof for a slur against white people, but now it will believe itself obliged to compensate by punishing someone "right-wing."

How can a professor be fair to black students if (s)he agrees with Thomas Sowell's "controversial" and "racist" ideas about factors other than racism influencing many decisions?

I don't buy that argument, and never have. You often see it with respect to police accused of saying stupid things too. For example, I believe that blacks are a genetically low IQ group predisposed to violence and disorder. However, I treat everyone as individuals and treat everyone civilly and fairly until they give me a reason not to. A cop or a professor can hate white people or black people and still grade everyone fairly. In my experience, the only group that professors are unfair to with respect to grades are conservatives.

It's hard to treat everyone as individuals when you think their appearance means they have a low IQ and are predisposed to violence. OY. Are you aware that you share 96% of your genetic content with chimpanzees. Any two individuals within a particular "racial" population are as different genetically as any two people selected from any two populations in the worl.

The classic challenge in 1A law is the overlap between state-as-sovereign, and state-as-employer. As employer, they have the state's interest in operating the office against the individual's right to free expression. As employer, presumably the state can negotiate a waiver of what would otherwise be clearly-established rights. So, for example, executive positions in the bureaucracy can be fired for publicly disagreeing with the elected executive.

The balancing test balances differently for lower-level employees, but they can still be disciplined or dismissed if they manage to create a big enough problem. So... if they want to dismiss this particular fellow, they have to claim he's causing a big enough disturbance to justify the action taken.

The question is, is this really all there is, or is it just a "last straw" after a long string of problems?

What? An employer is trying to punish an employee for public actions that damage the reputation of the employer? Say it isn't so!

In case that isn't clear, regardless of the legal details of this, or any, case, this sort of thing will continue to happen. Quite simply, you can't hurt your employer's reputation without repercussions. You may be able to legally force them to continue to employ you, but be careful what you wish for.

EscherEnigma: Well, let's say that gun rights become even more unpopular among my colleagues than they are now, and become highly unpopular among California students, donors, and legislators. I keep blogging in support of gun rights, and lots of people are upset by it, which might affect the employer's reputation. What repercussions should there be for me?

(I realize that one might be able to draw some legal distinctions between support for gun rights and racial hostility, though it turns out not to be easy. But your comment didn't seem to be drawing those distinctions, except insofar as they bear on the employer's reputation -- hence my hypothetical and my question.)

I suppose they'd look for a blog post where you said you hated gun-controllers so much you didn't even want to eat with them or live around them. If you said *that* (and I doubt you have), I would probably still defend your rights simply because I don't trust the would-be censors to be fair, even-handed, or sincerely interested in professional standards.

But if you simply say you support gun rights, that doesn't descend to the hatred-level of this particular guy.

Eddy: Well, if EscherEnigma's (or Rutgers') rationale were, "Our faculty can express any views they like, but they should do it without vulgarity and personal insults" -- or even "without overt expressions of hatred" -- then your distinction might be helpful (though that rationale might raise its own problems).

But I don't think that was EscherEnigma's argument; rather, his argument focused on the university imposing "repercussions" on faculty members whose speech "damage[s] the reputation of the employer." And such damage to reputation can surely happen as a result of reasoned argument that the public sufficiently dislikes, even without any talk of hatred or asshats, no?

Yes, indeed - and you would know more than I about the early academic-freedom cases where "not offending the public" overlapped with "not offending big donors." Until they managed to persuade some of these donors that academic freedom was an earmark of a distinguished university, something to put up with because it's a sign of deep intellectual ferment which makes the other, less-endowed colleges jealous. (I'm guessing at a lot of this, but it sounds right.)

I was doing more random riffing than usual, but the bottom line is that academic freedom developed as a combination of First Amendment doctrine (at public universities) and universities' need to reconcile their donors to the existence of professors who criticized the donors' values. Such at least is my reading.

So, a University is proposing to clamp down on expression of which it disapproves. Fairly typical of Academic behavior, going all the way back to the Middle Ages. And think how insulted the Liberal Intellectual Twits behind this would be at the comparison. THEY aren't like the hidebound Catholic Church dominated Universities of 15th Century Europe! THEY are RIGHT!

One difficulty with applying the First Amendment to State universities is that these institutions are engaged in trying to sell a product, and in order to do that successfully, they must appeal to, or at least not openly offend, their customers. The constituencies which they can't afford to offend include: (1) the students who have a choice of where to attend college; (2) the parents who write checks for tuition; and (c) propestive employers who might hire graduates.

If that idiotic rant by the Rutgers professor becomes widely distributed, it's hard to imagine a sane parent thinking, "Yes, Rutgers, that's the place I want to send several thousand dollars in tuition to educate my child." It's also quite possible that prospective employers might be leery of hiring Rutgers graduates if they think that this particular professor is representative of the quality of a Rutgers degree. So, just how far can the Rutgers administration go if they honestly determine that a professor's conduct or public speech impairs its ability to recruit students, or it determines that such conduct or speech risks impairing the ability of its graduates to obtain employment?

A sound argument against public universities, but I have to say, if I could get my kid a semblance of a college education for only "several thousand dollars in tuition", they could have the facility raving about 9/11 conspiracies and autism in their spare time for all I would care.

Thanks. You have just validated the virtue signalling hypothesis of the value of higher education. What really matters is the sheepskin, and the signal which it conveys that the degree holder was willing to sit out 4 years (or 5, or 6); whatever they might have actually learned (assuming that it wasn't promptly forgotten immediately after each final), or how they may have been misinformed by idiot professors, is irrelevant.

Another post of EV's 'paralysis by analogical reasoning.' Don't do x because, while you claim to be just doing x, my powers of analogy and hypotheticals demonstrate that you are also doing a-w (y and z appear safe...for now). I'm not sure how you get out of bed in the morning, given the slippery slope that enaues and leads you to walking off a cliff. I mean, you put your body into motion and it's just a matter of degrees until that motion takes you over a cliff.

Maybe Rutgers does it's thing, has it's policy challenged, and judges decide it's policy. All the way over at UCLA you can advocate the school not doing something similar, but if it does, rest assured you can have a judge decide the issue for you and the whole school.

We've seen several cases more recently with the same or similar dynamic as Rutgers is facing. Private institution Marquette University (and it's almost four year jihad against a professor) was just bytch-slapped by the WI Supreme Court and forced to reinstate the professor as well as back pay, tenure, lawyers fees, court costs, etc. It appears that Marquette has spent over $750K trying to defend their Progressive jihad on free speech, not including the several $100K for PR firm nor the back pay, lawyers fees, court costs, etc. Quite possibly close to $2M before it is all said and done. Does the State of NJ really want to take on that debt load over one of their own Progressive professors?

Watching right-wingers nip at the ankles of strong liberal-libertarian mainstream schools -- in a world in which most conservative-controlled campuses are third- or fourth-tier, censorship-shackled, science-disdaining, nonsense-teaching goober factories -- is amusing.

Jeffries became popular among his students and as a speaker at college campuses and in public. He is known for his Pan-African Afrocentrist views—that the role of African people in history and his opinion that the accomplishments of African Americans are far more important than commonly held.[7]

"Jeffries had also advanced a bigoted theory that whites are "ice people" who are violent and cruel, while blacks are "sun people" who are compassionate and peaceful.[8] He is a proponent of melanin theory and claims that melanin levels affect the psyche of people, and that melanin allows black people to "…negotiate the vibrations of the universe and to deal with the ultraviolet rays of the sun."[9]
...
"On July 20, 1991, Jeffries gave a controversial speech at the Empire State Black Arts and Cultural Festival, in Albany, New York. During the two-hour speech,[10] he said that "rich Jews" financed the slave trade and control the film industry together with Italian mafia, using it to paint a brutal stereotype of blacks.
...
"Jeffries remains a professor at CCNY."

Of course, most of this was over 25 years ago and involved anti-white bias and the administrators who run universities today were students back then, soaking in what Jeffries taught, applying it today.

"[T]he University's Core Function of Educating a Diverse Student Body." The ''core function," of a public University should be educating the most "qualified" students. The progressive objective of diversity, besides being unfair to those turned down to make room for others, creates more problems than it solves. The professor's problems here are a very minor unintended consequence of an erroneously assigned "core function."

-It's pretty hard to figure out what "qualified" means, which you seem to realized with your use of quotes.

-It's also not clear what educating means. It's not just facts and figures; never has been. Values are involved. The right are advocating for teaching respect and patriotism, whatever those mean. So teaching diversity is not some wacky off-the-wall choice, it's part and parcel of the other American values we teach our kids.

-I don't think there's enough evidence to support your proposition that affirmative action is somehow unnatural and the strain is why this prof had a Facebook rant.

I think you know I wasn't going for hamfisted Hollywood stereotypes, and I'm pretty sure you know my answering your questions doesn't indicate diversity should be the sole metric (or even a strictly quantifiable metric at all).

Though IMO the reasons to pay attention to disadvantaged groups has more to do with the meritocracy neglecting them than teaching diversity, but the both are good!

I've got issues with the way universities are dealing with political speech, but the right wing blogs' narrative of universal tyrannical liberalism is pretty unsupported as a general classroom matter.

It's anecdotal, but I was in grad school three years ago, and found my contrarian nature well satisfied by the points of view put forth in classes from energy policy to history to government relations.

Of course, I'd love it if they did more (and hired more alternate points of view, particularly on the right) but schools poisoning our youth's minds and spirits has been a hallmark of the older generation since like Ancient Greece, and this looks more like that than anything substantive.

"The science of measuring merit is a deep one, and the father down we go the clearer it becomes we don't even know enough to ask the right questions yet." One who attempts to communicate with progressives soon encounters the same problems that Alice encountered with Humpty Dumpty, i.e., words lose their common meaning, etc.

Another factor here is that every now and then, roles change and people who were previously regarded as oppressors come to be seen as having a point, or even as the oppressed.

Slaveholders were confident that abolitionists' motives were hatred and animosity. Post-reconstruction southerners were certain they had been oppressed by the North. Protestants were victims of Papist conspiracies. And so on.

John Calhoun famously got Congress to prohibit sending abolitionist literature through the mails on almost exactly the grounds argued by Rutgers. We have a diverse society, it's critical to make key oppressed minorities like slaveholders feel welcome, allowing free expression to abolitionist animosity could make slaveholders feel even more hurt, unwelcome, and oppressed.

Critical to free and frank discussion is the ability to challenge existing concepts of who's right and who's wrong, who's the oppressor and who's the oppressed. Rutgers can have no more claim to certainty that its current list gets things right than Congress could be certain Calhoun's list was. Without an ability to subject entrenched ideas to challenge, including the legitimacy of oppressed people's claim to be oppressed, we might still be under slavery today.

If people would learn to stop feeding the trolls, trolls would soon find themselves shouting to no one. But sadly, America loves drama and controversy more than anything else, as far as I can tell. So the trolls are fed well, as long as they continue to produce that which we love most.

===as Jeffries himself has argued, the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom.===

But it does limit him.

"Hmmm...I think I shall express an idea as a professor, knowing I cannot be punished by the government for taking part in the full "marketplace of ideas". What? I will lose my ministerial job with additional income?

What's interesting about the professor's screed is that his real problem was the annoying kids in the restaurant, but he's so indoctrinated in the social justice identity politics that he can't even get that out without making it somehow about race.

These people are so crazy that everything that happens to them is filtered through this lens like one of those instagram filters that augments reality and adds things to your pictures.

"Prof. James Livingston (white himself) said he "hate[s] white people" -- but Rutgers' reasoning would equally punish professors who express a wide range of views that offend people with a particular religion, sexual orientation, gender identity, and the like."

Are we pretending that hasn't *already* been the case for certain privileged protected classes for a long time?

Now you can get fired for hating Whitey too. Not my preferred outcome, but I'll take one set of rules over race based privilege everyday.

We don't have a right (free speech) if we can be persecuted for exercising it.

That means everyone. If you host a forum where people communicate and you censor them differently than the law does, you are violating their freedom of speech and should be convicted for breaking the law of the land.

Similarly if you persecute your employee for exercising legal free speech you have committed a crime.

Until the perpetrators of censorship are prosecuted, nothing will persuade them to respect our rights.